A neighbor has seized part of a plot of land: what to do, where to go

What to do if boundary boundaries are violated with a plot belonging to a neighbor?

The land grab situation is quite popular. The land plots are located in the neighborhood, and there is a fence on the border of the territory. To privatize a plot, land surveying is carried out and a cadastral plan is drawn up. When carrying out a survey, a cadastral engineer identifies a violation of boundaries.

In theory, fixing the situation is simple. It is enough to move the fence to the boundary indicated by the engineer. In practice, disputes over property boundaries are one of the most popular conflicts between neighbors.

If a neighbor refuses to move the fence voluntarily, then you must act as follows:

Prepare documents.
Send a complaint to your neighbor.
Go to court (if the neighbor refuses to comply with the requirement specified in the complaint).

Let's take a closer look at the procedure.

Example 1. Go beyond the border - pay

The fence, of course, is the primary stumbling block between neighbors.
Ideally, it should clearly coincide with the boundaries of the land plot. But, alas, this does not always happen - and then one of the neighbors will have to pay. Here is one such case. A man purchased a plot of land and installed a permanent fence (on the foundation) so that his dog would not disturb his neighbor. However, after a couple of years, the neighbor began to be overcome by doubts - is this really how the border with the adjacent plot should be located?

He ordered a land surveying service - and it turned out that the man had seized several meters of his rightful land with his fence and had been using it completely free of charge all this time.

The dispute eventually went to court: the neighbor demanded to move the disputed fence and recover unjust enrichment from the defendant based on the market rental rate per square meter of land in their area. The result was almost 30 thousand rubles in 2.5 years.

And the court upheld this claim:
according to the Land Code of the Russian Federation (Article 65), a fee must be paid for the use of land (except for cases provided for by law),
the defendant violated the boundaries of his plot and used the land of a neighbor - which means that he unjustifiably saved the rent that he should have paid to the owner. And unjust enrichment is subject to return (Article 1105 of the Civil Code of the Russian Federation).

So the man had to move the fence at his own expense, and also pay his neighbor for “rent” (Kachkanarsky City Court of the Sverdlovsk Region, case 2-294/2018). Only official land surveying can protect against such troubles.

Pre-trial

The procedure for pre-trial settlement differs from a regular request in that the victim prepares a complete list of evidence. A claim is drawn up based on the documents. In it, the victim warns the culprit that if he refuses, he will go to court.

To prove that you are right, you need to accurately mark the boundaries of the site. This can only be done by a cadastral engineer. The boundaries of the site are established by placing points on the terrain. The engineer takes measurements and indicates the exact boundaries of the site. The measurement error cannot exceed 10 cm.

As a result of the work, the engineer draws up an act of placing points on the ground. It is drawn up in 2 copies and signed by the customer and the contractor. The act is one of the main pieces of evidence in a dispute with a neighbor.

It should not be confused with land surveying. When surveying, the actual boundaries of the site are transferred to paper. And when points are taken out into the area, the boundaries from the cadastre are marked on the ground. As a result of the removal, it becomes clear which territory is captured.

Sample claim and submission procedure

The claim must be made in writing. It must indicate:

details of the offender;
information about the victim + phone number;
Title of the document;
information about rights to the site;
data about the violation;
reference to law;
a request to eliminate violations and install a fence in a straight line on the border of an adjacent land plot;
deadline for elimination;
notification of recourse to court in case of refusal of voluntary execution.

Sample claim

Official website of the Supreme Court of the Russian Federation

The Supreme Court of the Russian Federation made an important clarification for neighbors on land plots who have located buildings in such a way that access to them is difficult, but they cannot agree on their use or redevelopment of the territory: an easement should be an exceptional measure and be the least burdensome for the property owner. When considering such disputes, the court is obliged to proceed from a reasonable balance of interests of the parties so that the owner, whose rights will be limited, does not experience significant inconvenience because of this, the highest authority notes.

Access to garage and toilet

The highest authority was dealing with the dispute between residents of the Stavropol Territory. The plaintiff demanded that a perpetual easement be established on the neighbor’s property and oblige her to dismantle part of the fence. The applicant justified his claims by the fact that he could not use his garage and toilet, since with the existing location of the buildings it is technically impossible for a car to access the garage and for a sewer truck to pass to the cesspool.

The defendant filed a counterclaim for the dismantling of the drainage and sewerage system that the applicant installed on her land plot. She indicated that she once voluntarily retreated 4 meters from her property to allow her neighbor to pass, but he built a shed on this territory and arranged a place under it for storing cars and spare parts. Later, he built a garage on the border of the plots, although it was clear in advance that he would not be able to use this building for its intended purpose, even with an easement.

In addition, the neighbor, without the defendant’s consent and compliance with the project, laid sewer pipes along the site, damaging the concrete surface of the yard. Since the pipes are laid in a small depression, the owner of the plot cannot use this part of the land for a vegetable garden, and in the event of a breakthrough, all the fecal drainage will end up in her yard, and therefore she protested against further maintaining the sewerage system in this form.

In 2021, the Mineralovodsk City Court of the Stavropol Territory rejected both claims. He considered that the applicant had the technical ability to arrange access to the garage without limiting the rights of the defendant.

But the Stavropol Regional Court last year partially reversed the decision and supported the plaintiff’s position. The appellate court referred to the expert findings and decided to establish a perpetual easement on part of the defendant’s land plot to provide access to the garage and cesspool. He ordered the applicant’s neighbor to dismantle part of the fence, the fencing of the flower beds and the blind area of the summer kitchen.

The woman did not agree with this situation and brought her complaint to the Supreme Court of the Russian Federation, which made important clarifications about the rules for establishing an easement.

Reasonable balance

The right to demand from the owner of a neighboring land plot limited use of its territory is enshrined in paragraph 1 of Article 274 of the Civil Code of the Russian Federation, reminds the Supreme Court.

An easement may be established to ensure passage and passage through a neighboring land plot, construction, reconstruction and operation of linear objects that do not interfere with the use of the land plot in accordance with the permitted use, as well as other needs of the owner of real estate that cannot be provided without the establishment of an easement, indicates He.

An easement is established by agreement between the person requiring the establishment of an easement and the owner of the neighboring plot and is subject to registration in the manner established for the registration of rights to real estate (clause 3 of Article 274 of the Civil Code of the Russian Federation). If the parties cannot reach an agreement, the dispute is resolved by the court.

The Supreme Court draws attention to the fact that when considering such cases, it is necessary to determine whether the plaintiff has the opportunity to access his property without establishing an easement. At the same time, he recognizes that travel and passage to real estate are directly related to needs, in the presence of which it is possible to grant a limited property right.

Nevertheless, an easement should be established in exceptional cases and be the least burdensome for the defendant, the Supreme Court points out.

“An easement can be established by a court in exceptional cases when the provision of this right is the only way to ensure the basic needs of the plaintiff as the owner of the property.

An easement should be the least burdensome for the defendant, therefore, when determining the content of this right and the conditions for its implementation, the court is obliged to proceed from a reasonable balance of interests of the parties to the dispute so that this limited real right, providing only the necessary needs of the plaintiff, does not create significant inconveniences for the owner of the servicing land site,” emphasizes the highest authority.

However, in the dispute under consideration, the appellate court did not indicate whether granting the plaintiff the right to limit the neighbor’s use of her property is the only way to ensure his basic needs as a property owner.

The Supreme Court believes that the regional court should have determined whether the applicant had the opportunity to access his property without establishing an easement, but this was not done.

Having limited itself to a formal indication that access to the garage and cesspool is possible only through the neighbor’s plot, the second instance, in violation of the provisions of Article 67 of the Civil Procedure Code of the Russian Federation, did not evaluate the expert opinion, according to which other options for arranging access to the plaintiff’s buildings are possible, the highest authority found .

In addition, by granting the plaintiff the right to use the neighbor’s land plot by way of easement, the appellate court imposed on her the obligation, at her own expense, to dismantle the fence, flower beds and other buildings that she had erected, the Supreme Court was surprised.

However, within the meaning of paragraph 5 of Article 274 of the Civil Code of the Russian Federation, the costs associated with the establishment of an easement are borne by the person in whose favor the easement is established, recalls the highest authority.

The Supreme Court considered the violations of the law committed by the appellate court to be significant, and therefore canceled its ruling and sent the case for a new trial to the regional court.

Alice Fox

What can be considered a land grab?

First, you need to figure out what can be considered an unauthorized seizure of a site. In simple terms, squatting is the illegal use by a person of someone else’s land for his own needs. At the same time, the owners of the territory can be not only citizens, but also organizations, a municipality or the state.

In our country there is no “no man’s” land that anyone can use as they please. The entire territory belongs to someone (if not to a private person or enterprise, then to the state or local administration), and the right of ownership, according to the law, guarantees protection from outside encroachment.

One of the grossest violations of land use is the construction of a permanent structure on land that does not belong to the owner of the “samostroy”. Such unauthorized use of plots occurs frequently.

However, it is incredibly difficult to legitimize such a building and register the land under it as ownership. Most often, building owners are forced to demolish the constructed capital building at their own expense and pay fines for violating land use rules.

In addition to the case described above, other violations often occur. In particular:

unauthorized use of lands adjacent to one’s own plot for one’s own needs (for parking, growing crops, etc.);
non-compliance with established standards for indentation from linear objects;
using someone else's territory for storing materials;
violation of boundary boundaries with a plot belonging to a neighbor.

The violator does not always know that he is seizing someone else's territory. It may happen that he lost the documents for the site, and therefore the exact boundaries are not known. However, the invader's ignorance does not exempt him from responsibility.

Let us next consider what the owner should do if part of his land is seized by his neighbors.

Protection from raiding - how to protect your company?

In the global understanding, raiding is ineradicable as long as there are gaps in legislation, bribery and corruption. But any company can reduce the risk of falling into the hands of raiders. To do this, you should adhere to the following rules:

powers in a power of attorney for any employee should be strictly limited to solving a narrow range of tasks;
transfer of assets and alienation of property may be the prerogative of the board of directors rather than managers;
the process of sale (transfer) to third parties of shares in the authorized capital of the company, real estate, fixed assets must be strictly regulated by a separate internal regulatory document of the company defining the fundamental provisions in the statutory documents;
the choice of employees, especially top managers, accountants, financially responsible and trusted persons should be taken carefully - it is better to check their identities through security services or special agencies;
share capital should be consolidated as much as possible in one hand; if there are many shareholders, it is necessary to implement a system of measures to prevent the purchase of a certain number (giving the right to a decisive vote) of shares by third parties without the knowledge of the founders (major shareholders);
the charter should include a rule on the pre-emptive right to purchase shares or shares, real estate, fixed assets, internal (intra-holding) bills and other debt obligations, respectively, by participants (founders) and legal entities included in a holding or a group of enterprises;
nominees in company management should be avoided;
the company must have a well-functioning information security system;
the organization requires separate regulation and strict accounting of actions for issuing bills and other debt obligations;
regulation and strict accounting of all actions for the production, storage and use of seals and stamps used by the organization in its activities are necessary;
it is necessary to regulate and strictly take into account the relationships between managers and employees included in the administrative apparatus of the company, with the introduction of the practice of “internal notes” at least in relation to those actions or processes that may lead to the formation of debt, the sale of shares in the capital of the company, real estate and fixed assets ;
concentration of functions for the sale of the main assets of the company and the disposal of large sums of funds in the hands of one person who is not the main or sole owner of the company should be avoided; when business owners are removed from the management of the company, it is necessary to regulate in the statutory documents the procedure for obtaining their consent to carry out significant transactions;
it is necessary to instruct a lawyer or legal department to check the databases of the State Automated System “Justice” and other databases of the courts at least once a month for the presence of cases in court proceedings involving or in relation to the company;
it is desirable to enshrine in the statutory documents of the company the principle according to which all actions related to the sale of shares in the authorized capital, real estate and fixed assets are carried out by a specific notary or notaries of certain notarial districts;
All activities of the company must be carried out in strict accordance with current legislation.

It is difficult for a full-time lawyer who has never encountered the seizure of someone else’s property to assess all the risks and reduce them. In cases where an organization is subject to hostile takeover, the affected persons face a number of problems: law enforcement agencies refuse to initiate criminal cases;

checks on allegations of crime are carried out by employees of the EBiPK units of the Ministry of Internal Affairs of the Russian Federation formally and in violation of procedural deadlines;
inspection materials are sent from one territorial unit to another, from the police to the Investigative Committee in connection with a dispute over jurisdiction;
It is not uncommon for a person to refuse to initiate a criminal case citing the existence of a corporate dispute and a civil violation.

In recent years, the term “technical failure”, not provided for by law, has become widespread in recent years - operational officers, not having time to complete the inspection within the maximum 30-day period provided for by the Code of Criminal Procedure of the Russian Federation, issue unfounded decisions to refuse to initiate a criminal case in the hope that the decision will be canceled by the prosecutor’s office with receiving an additional month to conduct additional verification.